Trump’s EO-Protection Order and Proposed Constitutional Gambit

Ref: State of Washington vs Donald J Trump, et al. Judge Robart Presiding; Court rules in favor of the Temporary Restraining Order.  https://www.youtube.com/watch?v=r-kYOJPWlHQ

 

SCL Comment:

The Rule of Law

Before starting, we need to get straight what “the rule of law” means.

WHAT THE RULE OF LAW MEANS: In America, the rule of law means the Constitution. The Constitution is the Supreme Law of the Land and reigns supreme over ALL federal activity, legislative, executive, and judicial. Any federal law or federal court ruling that conforms with the Constitution is also the Supreme Law of the Land.

WHAT THE RULE OF LAW DOESN’T MEAN: It does not mean any old law or court decision the feds come up with regardless of its constitutionality. Unconstitutional federal laws and court decisions are THE RULE OF MAN and are, therefore, acts tyranny. Submitting to tyranny is NOT submitting to the rule of law. Resisting federal tyranny by offering constitutional rationale is conforming to the rule of law, similar to the justifications presented in the Declaration of Independence.

To start, let’s stop calling Trump’s Executive Order (EO) what it isn’t and start calling it what it is. Trump’s EO is not a “travel ban” as the Lying Leftist Media likes to call it. Trump’s EO 13769 is titled, “Protecting the Nation From Foreign Terrorist Entry Into the United States”. It is a temporary restriction on the immigration of potentially dangerous people. Trump’ EO is a “protection order”, not a “travel ban”.

The full title and text of Trump’s EO is in this Federal Register link. https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states.

I see this case as a tangled mess. It would be easy to blame Trump’s advisers and lawyers for not heading off these activist judicial moves but that’s 20-20 hindsight. Here’s how I see what has happened and what I think should happen as things currently stand.

First issue (should have been easiest to resolve): The hearing for restraining order. This hearing should never have happened at all because of lack of either standing or a genuine dispute of a material fact (no evidence of irreparable harm). But it did happen and should have been confined to the merits of the motion to restrain which required irreparable harm for which the plaintiff offered no substantive proof. STOP. Case suld have been closed – no merit to issue a restraining order. Trump’s protection order should have continued in effect.

Second issue: The validity of Trump’s EO/protection order in light of the federal statute. The issue of the merits of Trump’s EO should never have seen the light of day in this restraining-order case. Nevertheless, the EO itself was argued before the judge. The statute on which Trump based his EO, U.S. Code Title 8, Chapter 12, appears to be contradictory. The opposition argued that Trump’s EO violated section 1152 (a)(1)(a) (the anti-discrimination clause) which appears to conflict with section 1182(f) (the authorization clause), the basis of Trump’s EO. This is a rabbit hole. The DOJ brought a well-laid-out argument that the anti-discrimination clause doesn’t apply to the authorization clause because otherwise it renders the authorization clause of no effect. No matter. The judge had obviously already made up his mind.

I’m not sure how Trump’s writing a new EO based only on the federal statutes would get around this anti-discrimination argument before a Leftist judge. He might try appealing to vacate the restraining order showing the plaintiffs had no evidence of irreparable harm. Maybe he could even try to turn the tables, find a friendly court, and sue for a restraining order against this and other attempts to restrain his EO by offering evidence that shows that preventing Trump’s EO/protection order would create irreparable harm by allowing an influx of dangerous immigrants into the U.S. Long shot.

Enter the third issue (should be the first issue, but more difficult to resolve): The Constitution. The overriding issue in ANY federal action is the Constitution. Here, the Constitution MANDATES federal action to prevent invasion (illegal and dangerous immigration is invasion) (Art IV, Sec 4) and there is no constitutional provision that the action must be non-discriminatory. Barring success in lifting the current restraining order, Trump should issue a new EO referencing Art IV, Sec 4 of the Constitution as authorization and proceed with the protection order.

Attempts to again restrain Trump’s new EO/protection order should be rebuffed because there is no genuine dispute of a material fact to restrain (no evidence the EO creates irreparable harm). If the EO is challenged in court on the merits, the judge would have a problem reconciling years of unconstitutional federal anti-discrimination law with the actual Constitution as written and originally understood and intended. Of course, the Constitution validly trumps unconstitutional federal law. If Trump could get the case into a federal court with a just judge, he could win. If not, then the case could go up to the Supreme Court. If Trump’s nominee, Gorsuch, isn’t yet nominated, then four out of eight Justices could rule against the clear constitutional mandate at issue here. That would mean no decision in an evenly-divided court and, thus, the lower court ruling would stand. At that point we would have a clear constitutional crisis.

Constitutional Crisis and Gambit: Sooner or later, we must confront the massive, ongoing constitutional crisis in the federal courts which long ago went way off the constitutional rails and are basically in free-form with no apparent limitations. IMO, this is where Trump should throw down the gauntlet: call the Leftist judiciary bluff by notifying them of the reasons Trump is constitutionally mandated to take this action pursuant to Art VI, Sec 4 and why the courts have not shown a valid constitutionally-based reason for preventing his immigration EO. Then continue implementing the EO declaring the court’s ruling null and void.

This would be one branch, the executive, notifying the other, the judicial, with a constitutionally-based explanation why the action of the judicial branch is unconstitutional and, thus, null and void. Maybe include in the notice a time period for the judicial branch to correct their error but IMO the executive branch should continue with this constitutional EO/protection order for the safety of the nation at least until receiving a legitimate response from the judicial branch that would contain sound constitutionally-based reasoning. Trump should also notify Congress to correct THEIR error as well with appropriate legislation pursuant to Art VI, Sec 4. Maybe NOW is the time for this.

Trump’s rejecting the unconstitutional decision by the federal judiciary would almost certainly trigger a Congressional move to impeach Trump. Such a move would be without constitutional merit as Trump is the only party in this case trying to uphold the Constitution. What is the constitutional standard for impeachment? “Treason, Bribery, or other high Crimes and Misdemeanors” (Art II, Sec 4). What is the constitutional standard for treason? “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort” (Art III, Sec 3, Cl 1). By constitutional standards, if anyone should be impeached, it should be these judges blocking Trump’s protection order.

The answer is Trump should take his case to the American People citing Article IV Section 4 of the Constitution MANDATING the feds PROTECT the U.S. from invasion. Trump should urge his fellow Americans to call their congressmen to support his efforts to protect the American People and ask Congress to fix the existing law or pass a new one pursuant to Article IV Section 4. It’s a gamble but sooner or later, this showdown needs to happen. Who knows if or when our politically-vacillating Congress will nominate Gorsuch and there’s also the possibility Gorsuch could turn Left at the Supreme Court stop light as so many others have before him. Maybe now is the time. Now or never. If Trump took his case to the American People like he did during his campaign, I think he would win.

It’s time We the American People stand up for OUR freedoms and protection, OUR Constitution, OUR country, and OUR President. Trump wants to constitutionally protect America from invasion which is the first duty of the Federal Government and invasion is exactly what illegal and dangerous immigration is. Let’s pray that God will again help America here. Let’s do what we can to help Trump win and continue to make America great again.

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